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Articles 1 - 30 of 61
Full-Text Articles in Law
The Good, The Bad, And The Frivolous Case: An Essay On Probability And Rule 11, Charles M. Yablon
The Good, The Bad, And The Frivolous Case: An Essay On Probability And Rule 11, Charles M. Yablon
Faculty Articles
This essay begins by asking why lawyers bring frivolous cases, cases which, under the standard definitions of frivolousness, have no chance of success and should never have been brought. Rejecting the usual answers of lawyer stupidity and greed, it offers a different view of the frivolous case --that most of the cases that have been challenged and sanctioned in recent years under Rule 11 were brought by lawyers bringing cases they reasonably believed had a low (but not zero) probability of success. This provides a more plausible explanation for wy lawyers persist in bringing such cases, since they are essentially …
Stupid Lawyer Tricks: An Essay On Discovery Abuse, Charles M. Yablon
Stupid Lawyer Tricks: An Essay On Discovery Abuse, Charles M. Yablon
Faculty Articles
No abstract provided.
Native American Life Stories And "Authorship": Legal And Ethical Issues, Lenora P. Ledwon
Native American Life Stories And "Authorship": Legal And Ethical Issues, Lenora P. Ledwon
Faculty Articles
Juridical discourse concerning life stories has been primarily concerned with property and contract issues, and categories such as "ownership" and "authorship." Such legal discourse generally fails to acknowledge the unique nature of Native American life stories, particularly when such stories are written in collaboration with a non-Native editor or transcriber. This essay focuses on one fundamental question with overlapping legal and ethical aspects: how does a non-Native collaborator avoid a colonizing relationship to Native American texts? In suggesting possible answers to this vexing question, I always have on the horizon of my mind's eye two figures-Emmanuel Levinas, the philosopher, and …
Godtalk: Should Religion Inform Public Debate?, J. David Bleich
Godtalk: Should Religion Inform Public Debate?, J. David Bleich
Faculty Articles
No abstract provided.
The Jerusalem Embassy Act, Malvina Halberstam
An Attorney's Right To Retain Fees Derived From A Fraudulent Law Suit, Leonard Pertnoy
An Attorney's Right To Retain Fees Derived From A Fraudulent Law Suit, Leonard Pertnoy
Faculty Articles
The remedy of restitution, used to prevent unjust enrichment, is a fundamental right firmly entrenched in the common law. This is especially true in cases where a victim seeks equitable relief to require the return of money or property obtained as a result of fraud. However, should the defrauded person always be entitled to be made whole? Similarly, the remedy of forfeiture is also a deeply rooted legal concept, finding its beginnings in early English common law. Originally, forfeiture was a punishment annexed by law to some illegal act. However, the concept of deodand now not only includes forfeiture of …
James Edward Beaver-Beethovenist, Henry Mcgee
James Edward Beaver-Beethovenist, Henry Mcgee
Faculty Articles
Tribute to Professor James E. Beaver 1930-2001
Echo: Words Spoken In Memory Of James Beaver, Kelly Kunsch
Echo: Words Spoken In Memory Of James Beaver, Kelly Kunsch
Faculty Articles
Tribute to Professor James E. Beaver 1930-2000
Jim Beaver, The Founding Member Of This Law School, Thomas Holdych
Jim Beaver, The Founding Member Of This Law School, Thomas Holdych
Faculty Articles
Tribute to Professor James E. Beaver 1930-1999
Term Limits On Original Intent--An Essay On Legal Debate And Historical Understanding, Polly J. Price
Term Limits On Original Intent--An Essay On Legal Debate And Historical Understanding, Polly J. Price
Faculty Articles
This Essay is divided into five Parts. Part I sets the stage for the historical debate by evaluating the text of the Qualifications Clauses as well as the limited evidence of what the Framers and the ratifiers thought about these provisions. Part II shows that many states, immediately after the federal Constitution was ratified, behaved as though the Qualifications Clauses did not prevent them from adding qualifications for congressional office-holding. Part III compares this early evidence of state behavior with a debate in Congress after the Civil War concerning the meaning of the Qualifications Clauses. Part IV returns to the …
See No Evil - The Role Of The Directed Trustee Under Erisa, Patricia W. Moore
See No Evil - The Role Of The Directed Trustee Under Erisa, Patricia W. Moore
Faculty Articles
Just before ERISA's passage, Congress added a provision allowing a sponsoring employer to use a "named fiduciary" – usually one or more of the employer's officers – to direct the trustee. In that case, the trustee is to "be subject to proper directions of such fiduciary which are made in accordance with the terms of the plan and which are not contrary to this Act." Such a trustee is commonly called a "directed trustee."
After ERISA became law, commentators immediately observed that section 403(a)(1) generated more questions than answers. For instance, is a directed trustee a "fiduciary" at all? Does …
On Seeing Chinese Law From A Chinese Point Of View: An Appreciative Look At The Scholarly Career Of Professor William Jones, Janet Ainsworth
On Seeing Chinese Law From A Chinese Point Of View: An Appreciative Look At The Scholarly Career Of Professor William Jones, Janet Ainsworth
Faculty Articles
In this appreciative review, Professor William Jones's work is used to demonstrate that sensitivity to issues of methodology are indispensable for comparative law scholars. Professor Jones's work is valuable because (1) it is marked both by an awareness of the methodological difficulties faced by the comparativist and a confidence that it is nonetheless possible to transcend these difficulties and (2) it makes a meaningful contribution to the development of an understanding of a foreign legal order. The article concludes by stating that Professor Jones's work will influence future generations of scholars trying to answer the why, what, and how of …
The Nativist's Dream Of Return, Robert S. Chang
The Nativist's Dream Of Return, Robert S. Chang
Faculty Articles
In this address, Professor Robert Chang discusses how the current racial paradigm has become naturalized so that race in America is generally understood to mean black and white. It is this notion of race that limits people understanding and willingness to engage with the history and current state of Asian Americans and Latinos in the United States. Instead of being interested participants, they are seen as interlopers. Yet this status as interloper is precisely why Asian Americans and Latinos are important in discussions of race-our existence disrupts the comfortable binary of the black/white racial paradigm in which the black racial …
The Dayton Peace Agreement: Constitutionalism And Ethnicity, Ronald Slye
The Dayton Peace Agreement: Constitutionalism And Ethnicity, Ronald Slye
Faculty Articles
It has been almost five years since the violent dissolution of Yugoslavia. An estimated 200,000 civilians have been killed, over two million people have been displaced from their homes, tens of thousands have been tortured and raped, and Europe has hosted yet another of the world's genocides. While the recently concluded Dayton Peace Agreement has resulted in a temporary cessation of the armed conflict, serious concerns have been raised regarding efforts to rebuild and repair the institutions of civil society. Little attention has been paid, however, to the constitutional structure of the newly created state of Bosnia and Herzegovina. While …
A Pragmatic Approach To Decision Making In The Next Era Of Oil And Gas Jurisprudence, Laura H. Burney
A Pragmatic Approach To Decision Making In The Next Era Of Oil And Gas Jurisprudence, Laura H. Burney
Faculty Articles
A pragmatic approach to oil and gas law is the most effective way for the judiciary to address arising issues in that area of law. As in the Great Era of the Oil and Gas Industry, new and recurring questions will continue to confront courts in this next era of oil and gas jurisprudence. Because policies have shifted and technology has evolved, it is imperative to reassess the approaches used by courts in answering these questions. In order to respond effectively to questions posed by shifting policies and new technologies in the next era of oil and gas jurisprudence, courts …
Race, Gender, “Redlining,” And The Discriminatory Access To Loans, Credit, And Insurance: An Historical And Empirical Analysis Of Consumers Who Sued Lenders And Insurers In Federal And State Courts, 1950-1995, Willy E. Rice
Faculty Articles
Courts have failed to consistently remedy insurers’ and lenders’ discrimination against low-income individuals, women, and minorities. State and federal courts have tried to resolve disputes involving redlining, unequal access to capital, and insurance discrimination. Because of courts’ failures, Congress passed the Equal Credit Opportunity Act of 1974 (“ECOA”) and the Community Reinvestment Act of 1977 (“CRA”) to protect minorities and low income individuals. But the ECOA and CRA have not achieved their stated goals of eradicating either insurance or mortgage redlining.
In most states, the responsibility of enforcing federal fair-lending laws and eradicating all sorts of financial redlining is given …
A Special Forces Human Rights Policy, Jeffrey F. Addicott
A Special Forces Human Rights Policy, Jeffrey F. Addicott
Faculty Articles
The use of the United States military to promote human rights values in foreign militaries has taken on a much added significance in the post-Cold War era. Emerging democracies often look to American soldiers to assist them in establishing a law-based military whose policies, rules, and practices are rooted in respect for human rights.
Major General Kenneth Bowra, United States Army Special Forces Command (Airborne) (USASFC(A)), has made the promotion of human rights in the militaries of the emerging democracies a top priority for the Army Special Forces. With regard to America’s desire to inculcate human rights values in friendly …
The Right To Self-Defense Once The Security Council Takes Action, Malvina Halberstam
The Right To Self-Defense Once The Security Council Takes Action, Malvina Halberstam
Faculty Articles
No abstract provided.
The Myth Of Testamentary Freedom, Melanie B. Leslie
The Myth Of Testamentary Freedom, Melanie B. Leslie
Faculty Articles
No abstract provided.
An Introduction To Mandatory Hiv Screening Of Newborns: A Child’S Welfare In Conflict With Its Mother’S Constitutional Rights—False Dichotomies Make Bad Law, Paris R. Baldacci
An Introduction To Mandatory Hiv Screening Of Newborns: A Child’S Welfare In Conflict With Its Mother’S Constitutional Rights—False Dichotomies Make Bad Law, Paris R. Baldacci
Faculty Articles
No abstract provided.
Habermas And The Postal Rule, Peter Goodrich
Never Jam To-Day: On The Impossibility Of Takings Jurisprudence, Jeanne L. Schroeder
Never Jam To-Day: On The Impossibility Of Takings Jurisprudence, Jeanne L. Schroeder
Faculty Articles
No abstract provided.
Text, Purpose, Capacity And Albertson's: A Response To Professor Geier, Edward A. Zelinsky
Text, Purpose, Capacity And Albertson's: A Response To Professor Geier, Edward A. Zelinsky
Faculty Articles
In a recent issue of the Florida Tar Review, Professor Deborah Geier added yet another chapter to the running commentary on the Albertson's litigation, using that case to demonstrate her theories of statutory purpose and to criticize, in particular, statutory textualism as she conceives of it. Professor Geier correctly identifies the underlying issues in Albertson's-the role of statutory purpose, the differing institutional capacities of the Congress and the courts, fidelity to statutory text-but resolves those issues in ways that prompt me to rebuttal.
While I commend Professor Geier for her effort to explicate many important questions about the Code and …
"Do Justice!": Variations Of A Thrice-Told Tale, Michael Herz
"Do Justice!": Variations Of A Thrice-Told Tale, Michael Herz
Faculty Articles
Although recent debates would suggest that narrative scholarship is brand new,4 lawyers, judges, and law professors, like all humankind, have always offered stories for illustration or support or to make a point in an indirect, and often more effective, way. Learned Hand's story about telling Justice Holmes to "do justice" is one widely-used example, offered by many writers in addition to Judge Bork and Professor Chayes. Its popularity is easy to understand. The story has a substantive message, pithily expressed, on a basic jurisprudential issue; it involves two members of the pantheon; and it crams a lot of human interest …
Law And Order, Arthur J. Jacobson
Preface, Michel Rosenfeld
Pragmatism, Pluralism, And Legal Interpretation: Posner's And Rorty's Justice Without Metaphysics Meets Hate Speech, Michel Rosenfeld
Pragmatism, Pluralism, And Legal Interpretation: Posner's And Rorty's Justice Without Metaphysics Meets Hate Speech, Michel Rosenfeld
Faculty Articles
No abstract provided.
Can Rights, Democracy, And Justice Be Reconciled Through Discourse Theory? Reflections On Habermas's Proceduralist Paradigm Of Law, Michel Rosenfeld
Can Rights, Democracy, And Justice Be Reconciled Through Discourse Theory? Reflections On Habermas's Proceduralist Paradigm Of Law, Michel Rosenfeld
Faculty Articles
No abstract provided.
Hegel's Slaves, Blackstone's Objects, And Hohfeld's Ghosts: A Comment On Thomas Russell's Imagery Of Slave Auctions, Jeanne Schroeder
Hegel's Slaves, Blackstone's Objects, And Hohfeld's Ghosts: A Comment On Thomas Russell's Imagery Of Slave Auctions, Jeanne Schroeder
Faculty Articles
No abstract provided.
The Hermeneutic Of Acceptance And The Discourse Of The Grotesque, With A Classroom Exercise On Vichy Law, Richard H. Weisberg
The Hermeneutic Of Acceptance And The Discourse Of The Grotesque, With A Classroom Exercise On Vichy Law, Richard H. Weisberg
Faculty Articles
No abstract provided.